|Date of judgement||24 July 2018|
|Judge(s)||C Ludlow, Senior Member|
|Court or Tribunal||NSW Civil and Administrative Tribunal|
REVENUE – land tax – principal place of residence exemption – property not used and occupied by owner – meaning of income – conditions for exemption not met – land tax assessments affirmed
These proceedings concerned a review of the Chief Commissioner’s decision to assess the taxpayer for land tax on land at Bayview (“the Land”) for the 2014 to 2016 land tax years (“the Relevant Period”). The Chief Commissioner determined that the Land did not qualify for the principal place of residence (PPR) exemption under clauses 4, 6 or 8 of Schedule 1A of the Land Tax Management Act 1956 (“the Act”). These clauses allow the PPR exemption to apply to an owner’s intended PPR and for temporary absences from an owner’s PPR.
The key facts are:
The issues in dispute were whether the principal place of residence (PPR) exemption under clauses 2 and 6 of Schedule 1A of the Act should have been applied to the Land for the Relevant Period.
In determining whether clause 6 applied (intended PPR) the Tribunal had to consider:
The taxpayer submitted that the Land should have been treated as his principal place of residence under clauses 2 and 6 of Schedule 1A of the Act. In particular, he claimed that:
The Chief Commissioner submitted that the taxpayer had failed to discharge the onus of proof under s.100(3) of the Taxation Administration Act 1996, contending that:
The Tribunal was not satisfied that the taxpayer intended to “solely” use the Land as his principal place of residence. Therefore the concession for unoccupied land intended to be the owner’s PPR under clause 6 of Schedule 1A did not apply (at ).
The Tribunal determined that “income” should be given its ordinary meaning in the absence of any contrary intention demonstrated in the Act (at ). The Tribunal held that the entire rent received by the taxpayer constituted his income for the purposes of clause 6(2)(b).
The Tribunal also considered that clause 8 of Schedule 1A (“Concession for absences from former residence”) had no application to the taxpayer’s case, because he had not established that he had previously used the land as his principal place of residence for at least 6 months (at ). In any event, clause 8(7)(b) suggested that the ordinary meaning of “income” should apply (at ) (and the amount of rental income during the Relevant Period exceeded the sum of council, water and energy rates and charges and maintenance costs).
The Tribunal held that the taxpayer had failed to establish that the Land was “unoccupied land” within the meaning of clause 6(8) as the Land had been leased and it had generated rental income throughout the Relevant Period (at ).
The Tribunal confirmed that the Chief Commissioner had applied the correct versions of clause 6 at all relevant times, namely the versions applying on the relevant taxing dates of 31 December in 2013, 2014 and 2015 (at ).
The assessments for the land tax years 2014 to 2016 are affirmed.